Friday, 17 October 2008

The Lily Ledbetter Act on the Campaign Trail and a Broader Concern

It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way.

Lisa Takeuchi Cullen commented on the mention of the Lilly Ledbetter bill in the 3rd Presidential debate in her Work in Progress Column, Fair pay comes up in last night's debate . She mainly used that to pivot (I definitely have been watching/reading too much political commentary) to yet another portion of the Governor Palin interview with Katie Couric about this topic. Painful reading.

It is unusual for labor and employment matters to get aired in political debate, and while the Lilly Ledbetter Act and the EFCA are exceptions, neither is really at the top of anyone's campaign talking points.

As with the EFCA (and many other issues) political sound bites should be no substitute for careful and thoughtful study. Many, like Cullen, point out the likeability of Lilly Ledbetter and the fact that what happened to her, discriminatory pay over many years as found by a jury, taken away because she didn't file soon enough, doesn't seem "fair" or "right."

What gets mentioned much less often is that there is another way to remedy her precise situation than the proposed legislation. The Ledbetter Act really will result in litigation over decisions that were made many years ago. For those who have experienced the difficulty of accurately recreating the events in lawsuits over events that occurred three or four years ago, you can only begin to imagine how difficult it will be to defend a decision made 10 to 20 years ago.

The Ledbetter court itself pointed out an alternative that would have potentially protected Ms. Ledbetter and others like her, without opening wide the door to all the problems of a contrary ruling (which is what the Ledbetter Act would do). In a footnote, Justice Alito noted:

We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

If a discovery rule were applicable, then Ledbetter could have argued that the statute of limitations did not begin to run until she discovered or should have discovered the discrimination occurred. If she had been successful, that would have protected her claim without opening the door as wide as the proposed statutory change will.

And there has actually been a legislative proposal, The Title VII Fairness Act that would do just that. If Senator McCain had chosen another female Republican, Kay Bailey Hutchison of Texas as his running mate rather than Governor Palin, Cullen's column might have referenced a much more coherent discussion of this issue since Hutchison is the author of the Fairness Act.

Hopefully, when it actually comes to acting on much of the potential legislation that is likely to appear in the next Congress, there will actually be a deliberative process that results in compromise legislation rather than one side running rough shod over the other. I know that those who advocate for the Lilly Ledbetter and EFCA bills will argue that turn about is fair play and for far too long it is their view point that has been the recipient of rough shod treatment.

Without trying to debate the merits of that argument, I would only hope that Congress and the new Administration realize that once employment laws are passed it is highly unlikely that they will ever be rolled back. The last example I can think of is the 1947 Portal to Portal Act, that limited some aspects of the Fair Labor Standards Act passed nine years earlier. (If anyone can think of any others, I would welcome hearing from you.)

It is also critical that Congress understand the tremendous impact labor and employments laws can have on productivity, costs and profitability, all of which inevitably impact employees.

Even if you do not agree on the wisdom or the degree, you can't help but agree that the difference between labor and employment laws in the US and Europe have likely had a significant impact on the relative success of the two economies. (An argument which of course sounded a lot better a month ago than it does today.)

I think it is quite likely that there are major changes in the labor and employment laws coming. The potential consequences and the fact that later correction by rolling them back is highly unlikely, argue strongly for incremental changes. Some might say it calls for the use of a scalpel, not a hatchet. We can only hope.